–Report by Sneha Sakshi

In Writ Petition (C) No. 740 of 1986, the initial question is whether a Constitution Bench of this Court should re-examine the position it took in Sardar Syedna Taher Saifuddin Saheb v. State of Bombay. The Bombay Protection of Excommunication Act, 1949 (also known as “the Excommunication Act”) was being challenged as being unconstitutional.

FACTS

On the grounds that it violates the fundamental rights protected by Articles 25 and 26 of the Indian Constitution, Sardar Syedna Taher Saifuddin Saheb challenged the Excommunication Act. Excommunication, according to the Constitution Bench, is an essential component of the Dawoodi Bohra community’s management, and interfering with this prerogative constitutes interfering with the community’s freedom to manage its own affairs in issues of religion. As a result, the Act is null and void and violates Article 26(b) of the Constitution.

No excommunication of a member of any community shall be valid or have any effect, according to Section 3 of the Act. Excommunication is defined in Section 2 of the Act as the removal of a person from any society in which he or she is a member, depriving that person of rights and privileges that are legally attainable through a civil lawsuit.

CONTENTIONS OF PETITIONER:

➢ After taking into account the ruling of the Supreme Court in the matter of Sardar Syedna, the Central Board of the Dawoodi Bohra Community petitioned for the issuance of a writ of mandamus ordering the State Government to implement the Ex-communication Act’s provisions. 

➢ A Division Bench ordered that the case be placed before a Bench of seven Judges after issuing “Rule Nisi” in the petition on August 25, 1986.

CONTENTIONS OF RESPONDENT:

➢ Syedna Mufaddal (53rd Daial Mutlaq) submitted a request for a directive requesting that the petition be listed before a Division Bench. ➢ A Constitution Bench received the writ petition. 

➢ The application submitted by the second respondent was partially approved by the Constitution Bench by judgement and order dated December 17, 2004.

JUDGMENT

The petitioners’ knowledgeable senior lawyer, Shri Siddharth Bhatnagar, contended that the Dawoodi Bohra community’s practise of Baraat/ex-communication falls under the definition of “matters of religion” as stated in clause (b) of Article 26 of the Indian Constitution. Additionally, he claimed that even if the Ex-communication Act were to be repealed, it would still be necessary to determine whether the practise of ex-communication is regarded as a matter of religion because the 2nd Respondent, Syedna Mufaddal, serves as both the religious Head and the Trustee of the community property. Finally, he claimed that morality affects the rights protected by Article 26 and that this Court’s decisions have helped to clarify what morality is.

The case Indian Young Lawyers Association & Ors. v. Sabrimala Temple, concluded that the excommunication practise in the Dawoodi Bohra community violates Articles 17, 19, 21, and 25 of the Indian Constitution and cannot, therefore, be protected by Article 26 of the Constitution.

In the Sardar Syedna case, the Constitution Bench did not attempt to strike a balance between the rights under Article 26(b) and other rights under Part III, particularly Article 21.

The Sabrimala Temple Review ­a bench of nine judges is debating this matter in large part. Additionally, as the practise of excommunication is subject to morality, it is important to determine if Article 26(protection)’s of it may be put to the test. To do this, it is important to use the concept of constitutional morality as a yardstick. This is an urgent, crucial problem. The abovementioned judgement may need to be reviewed by a larger Bench on these two key grounds.

In light of the situation, it is believed that the current writ petition merits being included in the Review Petition (Civil) No.3358 of 2018 that is currently being heard by a bench of nine honourable judges. As a result, it is directed that the Registry ask the Honorable Chief Justice for the necessary instructions in this regard.

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